Mr Isaac LeefvRiordan Group Pty Ltd T/A Riordan Grain Services Ltd

[2015] FWC 1635

[2015] FWC 1635

FAIR WORK COMMISSION

SUPPLEMENTARY DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Isaac Leef
v
Riordan Group Pty Ltd T/A Riordan Grain Services Ltd
(U2014/11785)

DEPUTY PRESIDENT SMITH MELBOURNE, 12 MARCH 2015

Application for relief from unfair dismissal.

Introduction

[1] On 20 February 2015 a decision [[2015] FWC 1209] was issued which:

● Dismissed a jurisdictional objection that the termination of employment of Mr Leef was a genuine redundancy as prescribed in s.385(d) of the Fair Work Act 2009 (the Act).

● In those circumstances, determined that Mr Leef was a person protected from unfair dismissal.

● Determined that the Small Business Fair Dismissal Code did not apply.

● Determined that there was an operational need for the employer to make a redundancy.

● Called into question the selection of Mr Leef.

● Found that the termination of employment was harsh, unjust and unreasonable.

[2] This decision is to be read in conjunction with the earlier one. Arising from that decision the issue of remedy was deferred for further submission. That has now occurred and it is to remedy that I now turn.

Remedy

[3] Mr Leef seeks reinstatement. Mr Burrell, argued on behalf of Riordan Group Pty Ltd, trading as Riordan Grain Services (Riordan), that reinstatement was inappropriate because there was no position to return to and that if reinstatement did occur, another person would have to be dismissed.

[4] In turning to whether or not compensation should be awarded Mr Burrell dealt with each of the criteria under s.392 (2) of the Act. It was submitted that:

● A modest award of compensation would not affect the viability of the enterprise. [s.392(2)(a)].

● Mr Leef had been employed for five years which is neither a short nor a long period of employment [s.392(2)(b)].

● Mr Leef was terminated on 1 August 2014 and if he had not been terminated on that date there would have been a period in which Riordan would have needed to consult with Mr Leef [s.392(2)(c)].

● Mr Leef received a termination payment equal to 12 weeks pay, which was made up of 8 weeks redundancy and 4 weeks pay in lieu of notice [392(2)(g)].

[5] Finally, Mr Burrell submitted that no compensation should be awarded, but if the Commission was persuaded to do so, then no more than an additional weeks pay should be granted.

[6] Mr Leef sought six months payment as compensation as an alternative to reinstatement. He submitted that he had been looking for work but he suspected that when a prospective employer sought information from Riordan, untruthful statements made were inhibiting his ability to obtain other employment.

[7] No evidence was called. I do not comment upon the veracity or otherwise of this submission by Mr Leef as it would be a serious error of judgment by Riordan if such information was given to a prospective employer. It may be actionable. Mr Leef was not terminated for any reason related to his performance and on Riordan’s submission is was a necessary redundancy which would not reflect badly on Mr Leef or his performance.

[8] Notwithstanding this allegation Mr Leef has had casual work as a driver in September of last year earning approximately $5,848.82 (gross). His final payout at Riordan (excluding leave) was $19,617 (gross).

Conclusion

[9] Notwithstanding my disquiet about the selection process and any extraneous reason used, there is no evidence to suggest that Mr Leef may not have been chosen for redundancy and superficially, given that his vehicle was sold in proper circumstances, there was a ready candidate for selection. 1 Given the facts of this case, I am satisfied that reinstatement is not appropriate. I therefore now turn to the consider compensation which I believe is appropriate in all the circumstances of this case.

[10] I agree with the submission of Mr Burrell in relation to a consideration of s.392(2) (a) to (c). In relation to s.392(2)(d), Mr Leef has sought to mitigate his loss and earned money as a casual driver in September of last year [s.392(2)(e)]. In considering s.392(2)(f), I am drawn to conclude that the approach urged upon by Mr Burrell is the correct one given the structure of the Act.

[11] I have given particular consideration to s.392(2)(g) of the Act in relation to a reason which impacted upon the decision of Riordan to dismiss Mr Leef. It is not possible to bring this matter into consideration when assessing compensation in a matter involving unfair dismissal because of the circumstances in this case. There is uncertainty about who would have been selected and as such an assessment of how long the person would have worked, absent the termination of employment, needs to be confined otherwise an assessment of loss would travel into impermissible areas.

[12] Whilst, Mr Burrell urged me to only consider an extra week for consultation if I was moved to consider compensation, I note that Riordan’s put Mr Leef on leave for six weeks to consider whether or not other opportunities existed. That period would have been better used in dialogue with Mr Leef. Accordingly, I find that he would have remained in employment for a further six weeks. I now turn to monies earned by Mr Leef following his termination of employment. During the period he earned $5,848.82. His pay for six weeks would have been 38 hours multiplied by $29.91 2 per hour, multiplied by 6 weeks. This equates to an amount of $6,819.48. His earnings following termination need to be deducted from the amount he would have earned had he not been dismissed at that time, but served another six weeks. I will make an order for the payment of $970.06 gross. I will not make any further deductions.

[13] I will not take into account monies paid as either redundancy or other statutory entitlements. Redundancy has a particular application which is not readily taken into account in matters such as this because the amount includes consideration of: ‘the inconvenience or hardship associated with searching for another job and/or the loss of compensation for non-transferable credits that have been built up such as sick leave and long service leave’. 3

[14] The order is attached to this decision

DEPUTY PRESIDENT

Appearances:

I. Leef the applicant with D Threllfall.

C. Burrell Solicitoron behalf of Riordan Group Pty Ltd trading as Riordan Grain Services.

Hearing details:

2015.

Melbourne:

March, 5.

 1   In this area there needs to be caution. See UES (Int'l) Pty Ltd v Leevan Harvey (2012) FWAFB 5241.

 2   Taking Mr Leef’s submission on his award entitlement.

 3 (1984) 8 IR at 62.

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